The present legal system has evolved in the context of the history of Ireland. The present-day legal system is the product of and still contains many elements which evolved in and can be traced to particular historical phases.
The ancient Irish Brehon laws were displaced in the Pale with the arrival of the Anglo-Normans in the 12th century. In practice, however, the jurisdiction of English law was limited to the East Coast.
In the 12th century, the monarchy in England enjoyed almost exclusive legal authority. Over the centuries culminating with the English Civil War the parliament consisting of the Commons and the Lords supplanted much of the King\’s legal authority so that the monarchy was ultimately left with a symbolic role.
After the Anglo-Norman invasion, English law and Royal Courts equivalent to those in England were introduced and the Judges applied customary rules. Common law Judges in Ireland applied broadly the same customary rules as those in England. This body of rules became known as the common law of England. Judges were effectively the King’s delegates in adjudicating on disputes and applying the common law rules.
The common law rules were in many cases technical and inflexible. Because the inflexible common law rules may lead to injustices there existed a system of petitions to the Lord Chancellor, petitions from the common law Courts, which were decided on the basis of justice and equity rather than the technical common law rules.
Over time the Chancellor’s Department grew into the Courts of Chancery and themselves applied the so-called body of law known as equity. Originally equity was much more flexible than the common law. However, by the 18th century, its rules and principles became much more rigid. In both the Courts of law (common law, equity and chancery) the system of precedent and decision and application of consistent principles predominated.
There existed Irish parliaments from the 12th century onwards. These were limited bodies which were convoked and revoked for certain periods only.
Parliaments in the middle ages were not democratic bodies and did not make a significant amount of legal rules. Over the 12th to 17th centuries the role of parliament was minimal in relation to the development of law.
Over time, however, culminating in the 16th century the Judges and Courts came to accept the supremacy of parliament. Parliament\’s power to make laws empowered it to overturn common law rules and legislate in any area.
Early Modern Era
The influence of English law declined in the 14th and 15th century. Many of the Norman English married into Gaelic Irish families and \”became more Irish than the Irish themselves\”.The 16th century saw a re-establishment of English law outside of the Pale to most of Ireland under the Tudor monarch. After various rebellions, many former Gaelic chiefs were brought firmly under the system of surrender and regrant.
A law passed at the end of the 15th century, so-called Poynings’ Law, which reaffirmed that legislation of Irish parliaments could only be convoked with the consent of the Kings Council and the King\’s Lieutenant and that any laws passed by such parliament English laws were deemed to be applicable and supreme so that any Irish law already made or made after that time would be deemed ineffective to the extent it was inconsistent with English law.
After the failed Ulster rebellion at the end of the 16th century, much of the lands held by the Ulster chiefs was regranted to English and Scottish settlers.The 17th century saw a number of rebellions and further conquests and reconquests culminating with the Battle of the Boyne followed by a reassertion of English law throughout Ireland. Traditional Gaelic law was firmly supplanted.
Following the English revolution of 1689 with the accession of William III in place of James II the English Bill of Rights set limits on the Royal power. The rights applied only to the established church. Those included did not adhere to be established right and in particular, so-called papists (Roman Catholics) were largely deprived of civil rights in terms of political participation, landholding and other contexts. Throughout this period Ireland remained formally a separate kingdom until 1800.
The English Parliament renounced its claim to make laws for Ireland in 1783 and there briefly existed in the Irish parliament known as Grattan\’s Parliament. Following the 1798 rebellion, the Act of Union permanently terminated the Irish parliament and merged Great Britain and Ireland into the United Kingdom of Great Britain and Ireland.
The Act of Union carried over all existing laws and firmly established the United Kingdom Parliament as supreme. By the Act of Union, the government and executive powers had been transferred to the ministers selected by parliament. The parliament consisted of the House of Commons and House of Lords.
Progressively the House of Commons being the elected body became the increasingly powerful body. The ministers were presided over by the first Lord of the Treasury, known as the Prime Minister. However, the House of Lords remained influential and it was not until 1911 in the context of the Irish Home Rule Bill that the power of the House of Lords to beat the legislation was removed.
The government\’s representative in Ireland was the chief secretary who was a member of Cabinet. The Irish executive was based in Dublin Castle represented by the undersecretary who exercised to most effect real power. The Crown’s representative was the Lord Lieutenant or Viceroy.
Union with Great Britain
Throughout the 19th century the parliamentary right to vote widened considerably. Following the campaigns of Daniel O\’Connell the rights of Roman Catholics to sit in parliament was established.
By the 1870s the Irish party represented a strong block within the House of Commons and campaigned vigorously for and aligned themselves with the Liberals. They campaigned vigorously for home rule within the United Kingdom. This would not have represented independence but a position similar to that enjoyed by Northern Ireland today.
Two Home Rule Bills in 1886 and 1893 were defeated ultimately following the Parliament Act 1911 firstly the first in the Commons and the second in the House of Lords. Due to its opposition to Irish home rule and significant budgetary reforms the Parliament Act in 1911 was passed which limited the power of the House of Lords to veto a bill for three sessions only.
The Home Rule Act was finally enacted in 1914 as the Government of Ireland act. The Act was suspended due to the outbreak of World War I and the unresolved opposition of Ulster Unionists.
The Home Rule Act was overtaken by the 1916 rebellion and subsequent rise and eclipse by Sinn Fein of the Irish Parliamentary party. Following the 1918 general election, the Sinn Fein candidates representing principally the present 26 Republic of Ireland met in independent parliament Dáil Eireann.
Following a guerrilla/military style campaign of two years between the nationalists and United Kingdom authority articles for a treaty with a Constitution annexed were signed. The Treaty was narrowly passed by the second Dáil which comprised the Sinn Fein representatives to the parliament of southern Ireland. Following this the Treaty and the Free State Constitution were ratified Dáil Eireann.
The Government of Ireland Act 1920 equivalent to the \”Home Rule\” Government of Ireland Act 1914 provided separately for Southern Ireland and Northern Ireland with Dublin and Belfast as capitals. Each body was to have separate parliaments and Courts with a High Court of Appeal for all Ireland.
The Northern Ireland State came into existence in July 1921 and continued as such until 1972. The Government of Ireland Act in respect of Southern Ireland was superseded by the Treaty and Irish Free State Constitution.
The Irish Free State comprising the 26 counties obtained dominion status. Disagreement over the Treaty and partition and limited independence led to a brief civil war from 1922 to 1923.
The medieval role of the chancellors by the Act of Union the Supreme Court had become the judicial committee of the House of Lords. Although formerly a part of the House of Lords, the upper house of parliament cases were only heard by the judicial law lords appointed for this purpose. The law lords ceased to be involved in the law-making powers of the House.
In Ireland, England and Wales the separate Courts of law and equity could reach different conclusions on the same matter. The Chancery Courts generally dealt with certain subject matters such as land, succession, trusts. The common law Courts dealt with most matters including most commercial matters. There could be contradictory decisions by the Courts. There was scope for contradictory decisions and uncertainty.
In 1873 in England and Wales and 1877 in Ireland, a unified system of Courts was established. From that time forward all Courts must apply both common law and equitable rules. Rules of equity were stated to prevail in the event of a conflict.
The High Court of Justice was established which is the direct predecessor of today\’s High Court. It was divided up into a number of divisions which took certain ancient Courts which have existed since ancient medieval times.
The Court of King\’s Bench or the Queen\’s Bench was the principal division. It dealt with most legal, criminal and civil matters and exercised supervision over lower Courts. The Court of Exchequer and Court of Common Plea grew from certain older Courts. Finally, the Chancery Division was the successor of the Courts of Chancery which had developed in medieval times as a counterbalance to the Courts of law.
The Courts were further rationalised in the late 19th century and early 20th century so that the High Court divisions were reduced to two namely the King\’s Bench Division and Chancery Division.
The Assize Courts in Ireland replicated those in England. The Assize Courts travelled through the Kingdom hearing cases in certain provincial towns. Their modern equivalent is the High Court on Circuit. They are effectively High Court Judges.
Justices of the Peace are officials who heard less serious criminal offences, effectively the equivalent of the District Court. They travelled to various towns in a circuit generally four times a year in what was known as the Quarter Sessions.
The Justices heard both preliminary cases hearings where the Assize Courts and heard minor offences. Outside of the Quarter Sessions Petty Sessions were held being equivalent to the preliminary hearings for the Assize Courts equivalent to the preliminary hearing that existed until relatively recently in the Circuit Court and District Court. If it was found that there were was a case of sufficiently serious nature a Grand Jury would decide whether there was sufficient prima facia evidence to support an indictment by jury at the Assize’s hearings.
Justices of the Peace remain as a feature of England and Wales Courts to this day and are non-legal lay appointees. In Ireland in many areas magistrates were appointed to deal with Petty Session matters due to criticisms of the Justice of the Peace.
Much present-day District Court legislation and procedure derive from the powers and jurisdiction of the Justice of the Peace.
In England and Wales and Northern Ireland lay magistrates guided and assisted by qualified magistrates’ clerks are the equivalent of the Petty Sessions.
The County Courts were established in 1877 to deal with civil cases that would otherwise have been heard by the Assize Courts. The Circuit Court is the direct successor of the County Court. Much of their procedures and legislation is still based directly on that of the County Court. The Courts were originally the agents for the King. They came to have the authority to deal with individual disputes.
The Courts as carried over into the Irish Free State and the Republic of Ireland have the same broad characteristics as those existing prior to independence. Many of the Court rules and procedures remain unchanged and in broadly common form.
Government and Local Government
Many of present-day government institutions were established and evolved in the 19th century. In the early 19th century there existed miscellaneous municipal corporations which performed some of the functions of the local authority. More general enabling legislation allowed for town bodies to be formulated to provide for such matters as lighting and very basic amenities.
The Grand Jury which wwasmade up of wealthier land owners were bodies throughout the country which raised monies equivalent to the so-called county cess. In 1838 the poor losses system was established for the charging of administration of relief in workhouses and financed principally by the so-called poor law rates. Modern day local authority late rates are still based on the original poor law rate legislation.
Legisltion was passed in the mid-19th century to facilitate the wider organisation of water supplies, sewerage, gas and later telegraphs and electricity.
In 1878 the Public Health Act brought much established rural and urban sanitary authorities to provide water, sewerage and deal public nuisances and basic public health issue.
Ultimately County Councils were formed in 1888 incorporating the powers of the poor law commissioners, urban and sanitary authorities and Grand Jury to form County Councils rural and urban district councils throughout the country. These were locally elected and raised a single rate for the county. Local government powers were further enhanced in the late 19th and early 20th century incorporating housing and more general civic responsibilities.
The equivalent of modern government departments evolved from parts of the Dublin based administration. The local government board oversaw local government matters such as public health and local government legislation. It ultimately at independence became the Department of Local Government latterly the Department of the Environment and Local Government.
The Department of Agriculture and Technical Instruction was established at the turn of the 20th century to support agriculture and instruction to perform a specific role in the board.
The Board of Public Works play a significant role in managing the infrastructure and land of the State. Its present day successor is the Office of Public Works which still largely manages the State infrastructure and is directly under the auspices of the Department of Finance. Other agencies such as the Board of Trade, the Post Office were effectively the Irish branch of the UK wide body.